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The defence in the drunken driving case of Pretoria Judge Nkola Motata is set to apply for the case to be dismissed when they return to the Johannesburg magistrate's court on Tuesday.
The state's case was left on shaking grounds yesterday after the presiding magistrate again prevented the prosecution from calling a mystery Miss X to testify.
After suffering the crucial setback, prosecutor Zaais van Zyl immediately closed the state's case while lawyer Danie Dorfling told the court that he would be bringing an application when he returned.
The state has suffered a string of setback throughout the trial and wanted to use a witness known as Mrs X to rescue its case.
Magistrate Desmond Nair said he did not believe that the evidence of the mystery Mrs X was essential as the state had claimed.
Nair said it was for the court to decide whether the evidence the state wanted to introduce was essential.
"While it appears essential to the state to call her, the question remains, is it essential to me? he asked. He said he was also concerned about the timing of calling Mrs X because the state knew about her existence earlier in the trial.
Van Zyl had requested the magistrate on Tuesday to revisit his last year's judgment where he barred Mrs X from testifying.
This was the third attempt by the state to call her.
The first attempt was in November last year and the second one was on Monday.
"I don't intend to revisit the merits of my judgment."
Motata is on trial for drunken driving and defeating the ends of justice. He allegedly reversed his vehicle into the wall of Richard Baird's Hurlingham, Johannesburg, home in January 2007.
Nair said: "The state called certain witnesses and chose not to call some. The state asked me to use my discretion but not now," he said.
After Nair ruled on the matter, Van Zyl told the court: "That is the state's case."
The case continues on Tuesday.